Oregon's Development of Absolute Liability Under the

Urban Law Annual ; Journal of Urban and Contemporary Law

Volume 53

January 1998

Oregon's Development of Absolute Liability Underthe Rylands Doctrine: A Case StudyC. Conrad Claus

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OREGON'S DEVELOPMENT OF ABSOLUTE

LIABILITY UNDER THE RYLANDS DOCTRINE:

A CASE STUDY

C. CONRAD CLAUS*

"Unstable as water, thou shalt not excel ......

I. INTRODUCTION

Water has always been a double-edged sword for humanity. It is anecessity for a multitude of human activities, and much ofcivilization rests upon the successful use and development of waterresources.2 Yet "[c]ivilization represents a state of. . . hazard withrespect to water,"3 for "'[w]ater, at times, is a most dangerouselement even flowing in its natural condition, without the influenceof man; and, when formally restrained by the works of man ... itbecomes even more dangerous."'4 Perhaps nowhere are the potential

* B.S. 1992, Portland State University; J.D. 1996, Willamette University College ofLaw.

1. Genesis 49:4 (King James).2. See generally JOHN P. POWELSON, THE STORY OF LAND: A WORLD HISTORY OF

LAND TENURE AND AGRARIAN REFORM (1988). In fact, some historians have suggested thathuman civilization and organized govemment developed because of the requirements oforganizing and managing large water control projects. See generally id.

3. Paul B. Sears, Introduction to ELMER T. PETERSON, BIG DAM FOOLISHNESS at vii(1954).

4. Suko v. Northwestern lce & Cold Storage Co., 113 P.2d 209, 212 (Or. 1941) (quoting3 CLESSON S. KINNEY, A TREATISE ON THE LAW OF IRRIGATION § 1669, at 3069-70 (1912)).

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172 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 53:171

dangers of restrained waters greater than in the construction andmaintenance of reservoirs. A striking example of these dangers is thefailure of the reservoir above Johnstown, Pennsylvania in 1889. Inthe late 1880s, a club of wealthy sportsmen built a private huntingand fishing reservoir near the center of Johnstown by placing a damacross South Fork Creek, a small tributary of the Little ConemaughRiver. Although the inhabitants of Johnstown initially expressedconcern over the safety of the dam, the club allayed such concern byengaging the services of a competent engineer who declared that thedam was thoroughly sound.6

On May 31, 1889, heavy mountain rains significantly increasedthe water level of the reservoir, which, over the course of ten years,had become a considerably large lake.7 The resulting increase inwater pressure caused the dam to collapse, releasing the reservoir'swater into the town below.8 The consequences were horrific; thedeluge killed approximately two thousand people9 and caused $17million in property damage. '

For centuries, mankind has enacted laws to deal with the dangersof restrained waters." Such laws have been especially significant inOregon because, in the words of former Oregon State RepresentativeParkinson, "Oregon is a wet state.' 2 In 1979, a statewide study of

5. See WILLIS FLETCHER JOHNSON, HISTORY OF THE JOHNSTOWN FLOOD 15, 32-33(1889).

6. See id. at 33-34.7. See DAVID G. MCCULLOUGH, THE JOHNSTOWN FLOOD 100 (1968).8. See id9. See DISASTER, DISASTER, DISASTER: CATASTROPHES WHICH CHANGED LAWS 36

(Dougless Newton ed., 1961).10. See MCCULLOUGH, supra note 7, at 264. For the purposes of this Article, it is

instructive that, though there were several suits filed against the owners of the club, none of theplaintiffs prevailed. See id. at 258. Pennsylvania had only the three traditional common lawbases of liability, each of which precluded recovery by the plaintiffs in their suits. See CHAPIND. CLARK, SURVEY OF OREGON'S WATER LAWS 66 (1974); see also discussion infra notes 28-34 and accompanying text.

11. For example, in the Code of Hammurabi, one of the earliest sets of written laws, theBabylonians attempted to deal with disputes that arose when efforts to control large amounts ofwater went awry. See THE HAMMURABI CODE 37 (Chilperic Edwards ed., 1971). For anexample of another pre-modern society's problems with water impoundment projects and thelegal actions resulting from those problems, see JEAN GIMPEL, THE MEDIEVAL MACHINE 17-21(1980).

12. Hearings Before the House Committee on Intergovernmental Affairs in Regards to SB97, 49th Legis., Reg. Sess. (Or. 1957) (audio tape HC-85-IGA-156 available in the Oregon

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1998] OREGON'S DEVELOPMENT OF ABSOLUTE LIABILITY 173

Oregon found over five thousand existing or proposed reservoirs thatwere large enough to be considered for use as hydroelectric powersources.' While most of these structures are not as large as theJohnstown Reservoir was, they, as well as smaller agriculturalreservoirs,14 restrain massive and potentially damaging forces thatpose significant danger to their surrounding areas. Oregon's generalapproach to legal disputes arising from the failure of such dams andreservoirs is to impose heightened liability on the owners of thesebodies of water. Oregon courts have followed a fairly consistent pathin treating this issue,1 5 from their earliest decisions that addressed theissue to their most recent decisions.

This Article will trace the development of absolute liability' 6 forthe escape of impounded waters, often called the Rylands doctrine, 17

from its genesis, over 130 years ago, to the present. Part II of thisArticle outlines the origin of the Rylands doctrine. Part III gives anoverview of the different ways in which states in this country haveadopted and implemented the Rylands doctrine. Part IV thendiscusses Oregon's application of the Rylands doctrine. Finally, PartV concludes that Oregon's application of the Rylands doctrine servesas a tested model of absolute liability for the release of artificiallyimpounded waters.

II. THE BIRTH OF THE RYLANDS DOCTRINE

Absolute liability for the escape of impounded waters was firstestablished in England during the mid-nineteenth century in the case

State Legislative Archives). Representative Parkinson made this statement while speaking aboutproposed changes to the state rules for municipal annexation of property across bodies of waterand the possible abuses of those rules. See id.

13. See PETER C. KLINGEMAN, A RESOURCE SURVEY OF THE HYDROELECTRICPOTENTIAL AT EXISTING AND PROPOSED DAMS IN OREGON 85 (1980).

14. Based on a study of small agricultural reservoirs in Oklahoma, which indicated thatthere were approximately forty-five thousand small agricultural reservoirs in that state in 1953,it is probably safe to assume that there are at least that many reservoirs in Oregon, where waterresources are more plentiful. See ELMER T. PETERSON, BIG DAM FOOLISHNESS 192 (1954).

15. But see William L. Hallmark, Recent Case, Irrigation Districts and Rylands v.Fletcher in Oregon, 46 OR. L. REV. 239 (1967) (suggesting that Oregon Supreme Courtdecisions in this area of the law are somewhat contradictory).

16. For a brief discussion of the term "absolute liability," see infra note 49.17. See infra Part 11.



of Fletcher v. Rylands.18

A. The Factual Setting

In 1850, Fletcher obtained the right to work the Red HouseColliery, located in the Township of Ainsworth.19 To the west of theRed House Colliery, separated from the Colliery by a singleintervening piece of property, was the Ainsworth Mill, owned byRylands.20 In 1851, Fletcher additionally obtained the right to minethe coal from the land that intervened between the Ainsworth Milland the Red House Colliery.2' Between 1851 and 1860, Fletcherremoved the coal from an underground seam that extended to theborder of Rylands's property.")

In 1860, Rylands began constructing a reservoir to supply theAinsworth Mill with water.23 During the construction of the reservoirbed, Rylands discovered five old vertical coal-mining shafts.24 Thetimber sides of the shafts remained, but the shafts themselves werefilled with soil.25 When Rylands filled the reservoir, water burstthrough the soil in one of the vertical mine shafts and entered theabandoned underground coal workings beneath Rylands's property.The water then entered the coal workings on Fletcher's interveningproperty and flowed into the Red House Colliery, causing it to bepermanently abandoned as a working mine.26

B. The Court of Exchequer Opinion

Fletcher subsequently brought a recovery action against Rylands

18. 3 H. & C. 774, 159 Eng. Rep. 737 (Ex. 1865), rev'd, 1 L.R.-Ex. 265 (Ex. Ch. 1866),aff'd, 3 L.R.-E. & I. App. 330 (H.L. 1868).

19. See 159 Eng. Rep. at 738.20. See id.21. Seeid22. See id.23. See id. at 739.24. See id25. See idl at 740. The shafts were the remains of forgotten coal workings that were

located beneath Rylands's property and that had been "worked at some time or other beyondliving memory." Id. at 739.

26. See id at 740.



in the Court of Exchequer.27 Under the common law, recovery waspossible on one of three grounds: trespass, negligence, or nuisance.28

A party could be liable under trespass only for damages caused byimmediate encroachments. 29 In this case, the water did not directlytrespass onto Fletcher's property, but, rather, crossed anotherproperty first. The court found that this encroachment was merely"mediate or consequential" 30 and, thus, denied recovery for trespass. 31

Furthermore, the court determined that the construction of a below-ground pond was a "nuisance to no one"32 and, therefore, deniedrecovery for nuisance.33 Finally, the court denied recovery fornegligence after finding that Rylands had acted with due care withrespect to Fletcher's property. 4 Thus, the court found for thedefendant, Rylands.35

C. The Exchequer Chamber Opinion

While not disputing the Court of Exchequer's analysis of the threetraditional bases for recovery, the Exchequer Chamber reversed thedecision of the trial court and found for the plaintiff, Fletcher.36 Thecourt, in an opinion written by Justice Blackburn, found that:

[T]he person who for his own purposes brings on his lands andcollects and keeps there anything likely to do mischief if itescapes, must keep it in at his peril, and, if he does not do so, isprima facie answerable for all the damage which is the natural

27. See id. at 737.28. See id at 744.29. See id. at 745.30. Id31. See.id32. Id.33. See id.34. See id. at 744, 747. In his dissent, Baron Bramwell argued that Fletcher ought to be

able to recover from Rylands regardless of the applicability of the three traditional bases forrecovery. Bramwell argued that "on the plain ground that the defendants have caused water toflow into the plaintiff's mines, which but for their, the defendants', act would not have gonethere, this action is maintainable." Id. at 744 (Bramwell, B., dissenting). Bramwell's opinionthus presaged the Exchequer Chamber's Rylands holding. See infra Part lI.C.

35. Seeid. at747.36. See 1 L.R.-Ex. at 269.



consequence of its escape.37

This passage of Blackburn's opinion established broad liability forland owners whose land development activities result in theunexpected release of a large volume of water. However, JusticeBlackburn limited this principle later in his opinion by requiring thata defendant have introduced onto his property a substance that isforeign to his property:

[I]t seems but reasonable and just that the neighbour, who hasbrought something on his own property which is not naturallythere, harmless to others so long as it is confined to his ownproperty, but which he knows to be mischievous if it gets onhis neighbour's, should be obliged to make good the damagewhich ensues if he does not succeed in confining it to his ownproperty."

In Rylands, the "something" not "naturally there" was the water inthe mill pond, an artificial construction of the defendant.39

During oral arguments, Justice Blackburn referred to Smith v.Kenrick40 and Baird v. Williamson,4' two cases involving water thatleft a defendant's property and entered a neighboring mine shaft. InSmith, the defendant allowed water that had naturally entered hismine to enter the plaintiff's mine through underground conduits thatran between the two mines.42 The Smith court found for the defendantbecause the defendant's use of the mine was not "unusual, ' ' 3 and thewater in the defendant's mine had "naturally flow[ed] down"44 to theplaintiff's mine.45

In contrast, Baird, which the Court of Common Pleas decidedafter the Court of Exchequer decided Rylands, involved severaldefendants who permitted water to be pumped directly into the

37. I at 279.38. Id. at 280 (emphasis added).39. See id.40. 137 Eng. Rep. 205 (C.P. 1849).41. 143 Eng. Rep. 831 (C.P. 1863).42. See 137 Eng. Rep. at 206-07.43. Id. at 223.44. Id. at 225.45. See idL at 224-25.


19981 OREGON'S DEVELOPMENT OF ABSOLUTE LIABILITY 177

plaintiff's mine as part of the defendants' mineral extractionoperations.46 The Baird court held that the defendants were liable forthe incursion because the flow of water to the plaintiff's mine wascontrary to the "operation of nature."47 Blackburn declared that Bairdand Smith established the proposition that "the mine owner whoworks to the edge of his land subjects himself to the natural flow ofwater into his mine, but not to the flow of water artificially broughtthere by a neighboring mine-owner."48 Justice Blackburn's emphasison the importance of questioning whether water causing damage toneighboring land was "naturally there" seems to acknowledge (andperhaps extend) the importance of the principles that he extractedfrom Smith and Baird.

D. The House ofLords Opinion

After the Exchequer Chamber determined that Rylands wasabsolutely liable49 for the escape of water from his mill pond intoFletcher's mine, Rylands appealed to the House of Lords.50 Affirmingthe Exchequer Chamber's opinion,51 the Chancellor, Lord Cairnes,concurred with Justice Blackburn's opinion and farther refined therule of law applicable to the escape of impounded waters.52 LordCairnes relied on Blackburn's "naturally there" language and theprinciples that Blackburn extracted from Smith and Baird.53

46. See 143 Eng. Rep. at 832.47. Id. at 837.48. Fletcher v. Rylands, 1 L.R.-Ex. 265,270 (Ex. Ch. 1866).49. "Absolute liability" is the modem term for the type of liability that the Exchequer

Chamber imposed on Rylands. Courts and commentators frequently refer to this type of liabilityas "strict liability." See Thomas C. Galligan, Strict Liability in Action: The Truncated LearnedHand Formula, 52 LA. L. REV. 325 (1991). Some authorities, however, believe that the term"strict liability" more properly applies to cases involving a case-specific risk-utility balance notcalled for in Rylands. See id. at 336. Thus, for the purposes of this Article, and with due respectfor the courts and commentators that have used the term "strict liability," this author adopts the"absolute liability" wording as more conceptually useful.

50. See Rylands v. Fletcher, 3 L.R.-E. & I. App. 330 (H.L. 1868).51. See id. at 342.52. See id. at 337-40.53. See id. at 338-39. Using Blackbum's "naturally there" language and the holdings of

both Smith v. Kenrick and Baird v. Williamson, Lord Caimes wrote:

The Defendants... might lawfully have used [their] close for any purpose for which itmight in the ordinary course of the enjoyment of land be used; and if, in what I may



Significantly, Lord Cairnes clarified Justice Blackburn's "naturallythere" language by requiring that the activity causing the damageinvolve a "non-natural" use of the land.-4 In other words, to be thesort of activity for which absolute liability could be imposed, LordCairnes required that an activity be "likely to do mischief' and not beof the type that would occur "in the ordinary course of the enjoymentof the land."5'

Rylands established a new basis of liability for property damage,the gravamen of which lies in the nature of certain activities that arecarried out on real property. Some of these activities, such as forcingwater onto a neighbor's property, or harboring a large volume ofwater, can carry a high risk of harm to innocent neighbors. While

term the natural use of that land, there had been any accumulation of water, either onthe surface or underground, and if, by the operation of the laws of nature, thataccumulation of water had passed off into the close occupied by the Plaintiff, thePlaintiff could not have complained that that result had taken place....

On the other hand if the Defendants, not stopping at the natural use of their close,had desired to use it for any purpose which I may term a non-natural use, for thepurpose of introducing into the close that which in its natural condition was not in orupon it, for the purpose of introducing water either above or below ground inquantities and in a manner not the result of any work or operation on or under theland,-and if in consequence of their doing so, or in consequence of any imperfectionin the mode of their doing so, the water came to escape and to pass off into the close ofthe Plaintiff, then it appears to me that that which the Defendants were doing theywere doing at their own peril; and, if in the course of their doing it, the evil arose towhich I have referred, the evil, namely, of the escape of the water and its passing awayto the close of the Plaintiff and injuring the Plaintiff, then for the consequence of that,in my opinion, the Defendants would be liable.

Id.54. See id. Some commentators seem to ignore the close connection between the

"naturally there" wording in Blackburn's opinion and the "non-natural" requirement of LordCaimes's opinion. See, e.g., CLARK, supra note 10, at 66; Thomas B. Brand, Rylands v.Fletcher in Oregon, 1 WILLAMLrTE L. REv. 344, 344-45 (1960); J.3. Glen, Annotation,Liability for Overflow or Escape of Waterfrom Reservoir, Ditch, or Artificial Pond, 169 A.L.R.517, 520 (1957). This treatment may be attributable to William L. Prosser's treatment ofRylands, which ignores the connection and credits Justice Blackburn with creating the broadstatement of law that "the person who brings on his land and collects and keeps there anythinglikely to do mischief if it escapes, must keep it at his peril...." WILLIAM L. PROSSER,HANDBOOK OF THE LAW OF TORTS § 59, at 449 (1941). Prosser treats Lord Caimes's "non-natural" use requirement as an "important qualification" that limited the scope of Blackburn'sopinion. See id.

55. Rylands v. Fletcher, 3 L.R.-E. & I. App. 330,338-39 (H.L. 1868).



such activities may produce a net public good and, thus, are notconsidered a public nuisance, it is unfair to require unsuspectingneighbors to bear the damage that these activities might cause, evenwhen the party conducting the dangerous activity is innocent of anynegligent behavior. The Rylands doctrine imposes a policy, therefore,that between two parties innocent of any wrongdoing, the partyresponsible for a dangerous activity must pay the cost of any damagethat the activity produces. This, in effect, makes the party conductingsuch a dangerous activity an insurer for neighbors who might bedamaged by the activity.

III. ACCEPTANCE OF THE RYLANDS DOCTRINE IN THE UNITED STATES

Whether a particular state has adopted a limited, categoricalreading of the Rylands doctrine 6 or a broader, general reading,57 itcan be said that "most jurisdictions in this country have adopted theprinciple of Rylands v. Fletcher ... and impose liability on ownersand users of land for harm resulting from abnormally dangerousconditions and activities .... ,,58

A. The General Rule

American courts began dealing with Rylands absolute liabilitysoon after the House of Lords issued its Rylands opinion. The firstAmerican jurisdiction to apply the Rylands doctrine wasMassachusetts, where a court imposed absolute liability on adefendant who allowed filthy water to percolate into a neighbor'swell.59 Shortly thereafter, Minnesota adopted Rylands absoluteliability in a case involving the breach of an underground watertunnel.6° For several decades following these decisions, courts and

56. See, e.g., Shockley v. Hoechst Celanese Corp., 793 F. Supp. 670 (D.S.C. 1992).57. See. e.g., Peneschi v. National Steel Corp., 295 S.E.2d 1, 5 (W. Va. 1982) ("The 'rule'

of Rylands is that 'the defendant will be liable when he damages another by a thing or activityunduly dangerous and inappropriate to the place where it is maintained, in light of the characterof that place and its surroundings."' (quoting W. PAGE KEETON E7 AL., PROSSER AND KEETONON THE LAW OF TORTS § 78, at 508 (4th ed. 1970))).

58. Ruggeri v. Minnesota Mining & Mfg. Co., 380 N.E.2d 445,447 (111. App. Ct. 1978).59. See Ball v. Nye, 99 Mass. 582 (1868).60. See Cahill v. Eastman, 18 Minn. 324 (1872).



commentators in the United States largely disapproved of the Rylandsdoctrine.61

Some commentators have suggested that Rylands initially metnearly uniform resistance throughout the United States due to thecountry's rapid expansion and socioeconomic development duringthe nineteenth century.62 During this period, the United Statesgovernment was trying to encourage economic growth in its frontierregions. A doctrine such as Rylands would have treated harshly thosewho were constructing the American infrastructure. Thus, Rylandswas unacceptable at the time.63 Once the American infrastructure

61. See KEETON ETAL., supra note 57, § 78, at 508 (citing Brown v. Collins, 53 N.H. 442(1873)); see also Marshall v. Welwood, 38 N.J.L. 339 (1876); Losee v. Buchanan, 51 N.Y. 476(1873); Jeremiah Smith, Tort and Absolute Liability, 30 HARv. L. REv. 241, 319, 408 (1916);Ezra Ripley Thayer, Liability Without Fault, 29 HARV. L. REV. 801 (1916); The Theory ofTorts, 7 AM. L. REV. 652 (1873); cf. Frederick Pollock, Duties ofInsuring Safety: The Rule inRylands v. Fletcher, 2 L. Q. REV. 52 (1886) (comparing the lack of acceptance of the Rylandsdoctrine in the United States and the doubts over its historical significance in England). But seeBraford Glycerine Co. v. St. Mary's Woolen Mfg. Co., 54 N.E. 528 (Ohio 1899) (applyingRylands liability to an explosion of stored nitroglycerine); Weaver Mercantile Co. v. Thurmond,70 S.E. 126 (W. Va. 1911) (applying Rylands to the escape of impounded water).The Pennsylvania Supreme Court, in an opinion delivered nearly twenty years after Rylandswas decided, exemplified the general disapproval of the doctrine in the United States:

The doctrine declared in Fletcher v. Rylands, regarded as a general statement of thelaw, is perhaps not open to criticism in England, but it is subject to many and obviousexceptions there, and has not been generally received in this country. A rule whichcasts upon an innocent person the responsibility of an insurer is a hard one at the best,and will not be generally applied unless required by some public policy or the contractof the parties.

Pennsylvania Coal Co. v. Sanderson, 6 A. 453, 460 (Pa. 1886). Later in the case the court

continued:

In the first place, then, we do not regard the rule in Rylands v. Fletcher as havingany application to a case of this kind; and, if it had, we are unwilling to recognize thearbitrary and absolute rule of responsibility it declares, to the full extent, at least, towhich its general statement would necessarily lead.

Id. at 463.62. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 78, at

549 (5th ed. 1984).63. See, e.g., Dye v. Burdick, 553 S.W.2d 833, 840 (Ark. 1977) ("One reason often given

for the rejection of strict liability is the burden that would be placed upon a legitimate activitywhich is in the interest of utilization and development of natural resources and the state'seconomy, such as the advancement of agriculture." (citing Barum v. Handschiegel, 173 N.W,593 (Neb. 1919))); cf Turner v. Big Lake Oil Co., 96 S.W.2d 221, 223 (Tex. 1936) ("The factthat [Rylands], as abstractly stated, cannot be justly applied to all subjects which its termsembrace, is enough to show that it is incorrect as a statement of a general principle of law.



became more developed, however, a number of jurisdictions foundabsolute liability more palatable. 64

Currently, most states generally accept the Rylands doctrine eitherby name or by a statement of law that was derived from Rylands 5

As of 1984, Rylands was rejected by name in only seven Americanjurisdictions:6 Maine,67 New Hampshire,68 New York,69 Oklahoma,70

Rhode Island,71 Texas,72 and, for all practical purposes, Wyoming.73

Accordingly, it has not met with general acceptance in this country.").64. For a discussion of this trend, see KEETON ET AL., supra note 62, § 78, at 548-49.65. See id. at 549 ("[Rylands] has been approved by name, or a statement of principle

clearly derived from it has been accepted, in some thirty jurisdictions, with the numberexpanding at the rate of about one a year.") (citing Enos Coal Mining Co. v. Schuchart, 188N.E.2d 406 (Ind. 1962); Healey v. Citizens Gas & Elec. Co., 201 N.W. 118 (Iowa 1924);Central Exploration Co. v. Gray, 70 So.2d 33 (Miss. 1954); Berg v. Reaction Motors Div.,Thiokol Chem. Corp., 181 A.2d 487 (N.J. 1962); Thigpen v. Skousen & Hise, 327 P.2d 802(N.M. 1958); Loe v. Lenhardt, 362 P.2d 312 (Or. 1961); Wallace v. A.H. Guion & Co., 117S.E.2d 359 (S.C. 1960)); see also Zampos v. United States Smelting, Refining and Mining Co.,206 F.2d 171 (10th Cir. 1953); Cross Oil Co. v. Phillips Petroleum Co., 944 F. Supp 787 (E.D.Mo. 1996); In re Tutu Wells Contamination Litig., 846 F.Supp. 1243 (D.V.I. 1993); Sterling v.Velsicol Chem. Corp., 647 F. Supp. 303 (W.D. Tenn. 1986); Gainey v. Folkman, 114 F. Supp.231 (D. Ariz. 1953); Matomeo Oil Co. v. Arctic Mechanical, Inc., 796 P.2d 1336 (Alaska1990); North Little Rock Transp. Co. v. Finkbeiner, 420 S.W.2d 874 (Ark. 1967); Luthringer v.Moore, 190 P.2d I (Cal. 1948); Catholic Welfare Guild, Inc. v. Brodney Corp., 208 A.2d 301(Del. Super. Ct. 1964); Cities Service Co. v. State, 312 So.2d 799 (Fla. Dist. Ct. App. 2d 1975);Fallon v. Indian Trail Sch., 500 N.E.2d 101 (Ill. App. Ct. 1986); National Steel Serv. Ctr., Inc.v. Gibbons, 319 N.W.2d 269 (Iowa 1982); Williams v. Amoco Prod. Co., 734 P.2d 1113 (Kan.1987); Washington Suburban Sanitary Comm'n v. CAE-Link Corp., 622 A.2d 745 (Md. 1993),cert. denied, 510 U.S. 907 (1993); Clark-Aiken Co. v. Cromwell-Wright Co. Inc., 323 N.E.2d876 (Mass. 1975); Valentine v. Pioneer Chlor Alkali Co., 864 P.2d 295 (Nev. 1993); GuilfordRealty and Ins. Co. v. Blyth Bros. Co., 131 S.E.2d 900 (N.C. 1963); Phillip Morris, Inc. v.Emerson, 368 S.E.2d 268 (Va. 1988); Siegler v. Kuhlman, 502 P.2d 1181 (Wash. 1972), cert.denied, 411 U.S. 983 (1973).

66. See KEETON ET AL., supra note 62, § 78, at 549; cf Rodney Max, Blasting-AnAbnormally Dangerous Activity in Need ofa Strict Liability Standard, 11 CUMB. L. REV. 23, 25(1980) ("The majority of states now recognize blasting as an abnormally dangerous activity andapply the strict liability approach for injury or damage caused thereby.").

67. See KEETON ST AL., supra note 62, § 78, at 549 n.57 (citing Reynolds v. W.H.Hinman Co., 75 A.2d 802 (Me. 1950)). But see Hanlin Group v. Int'l Minerals & Chem. Corp.,759 F. Supp. 925 (D. Me. 1990).

68. See Garland v. Towne, 55 N.H. 55 (1874); see also KEETON ET AL., supra note 62,§ 78, at 549 n.58 (citing Brown v. Collins, 53 N.H. 442 (1873)).

69. See KEETON ET AL., supra note 62, § 78, at 549 n.59 (citing Losee v. Buchanan, 51N.Y. 476 (1873); Cosulich v. Standard Oil Co., 25 N.E. 259 (1890)).

70. See Sinclair Prairie Oil Co. v. Stell, 124 P.2d 255 (Okla. 1942); see also KEETON ETAL., supra note 62, § 78, at 549 n.60 (citing Gulf Pipe Line Co. v. Sims, 32 P.2d 902 (Okla.1934)).

71. See KEETON ET AL., supra note 62, § 78, at 549 n.61 (citing Rose v. Socony-Vacuum



However, even in these jurisdictions, it is likely that the principle ofRylands has been accepted, and absolute liability imposed, under thename of "nuisance" or "absolute nuisance." 74

Corp., 173 A. 627 (RLI. 1934)); see also Wilson Auto Enters., Inc. v. Mobil Oil Corp., 778 F.Supp. 101 (D.1RI. 1991).

72. See KEETON Er AL., supra note 62, § 78, at 549 n.62 (citing Turner v. Big Lake OilCo., 96 S.W.2d 221 (Tex. 1936)); Gulf, Colo. & Santa Fe RLR. Co. v. Oakes, 58 S.W. 999 (Tex.1900); see also Stephens Trucking Co. v. Kemp, 560 S.W.2d 523 (Tex. Civ. App. 1977, nowrit); Dellinger v. Skelly Oil Co., 236 S.W.2d 675 (Tex. Civ. App. 1951, writ ref'd n.r.e.).

73. See KEETON ET AL., supra note 62, § 78, at 549 (citing Jacoby v. Gillette, 174 P.2d505 (Wyo. 1947)). While the possibility that a Wyoming court might impose Rylands absoluteliability may not yet be foreclosed, its likelihood has grown more remote since 1984. InWyrulec Co. v. Schutt, 866 P.2d 756,761 (Wyo. 1993), the Wyoming Supreme Court stated:

Wyoming, as had most states, rejected the notion that absolute liability should beimposed for anything brought onto the land which was not naturally there, escaped andcaused damage. This court required that negligence must be shown. We have sinceconsistently imposed the standard of ordinary care under all of the circumstancesrather than absolute liability.

Id. (citation omitted).74. See KEETON ET AL., supra note 62, § 78, at 552-53 ("There is in fact probably no case

applying Rylands v. Fletcher which is not duplicated in all essential respects by some Americandecision which proceeds on the theory of nuisance; and it is quite evident that under that namethe principle is in reality universally accepted." (footnote omitted)); see also William L.Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399, 426 (1942) ("[L]iability for what iscalled 'nuisance' very often rests upon a basis of strict liability, without proof of wrongfulintent or negligence, and is not to be distinguished in any respect from the doctrine of Rylandsv. Fletcher.").

While for some time several American jurisdictions classified Rylands as a nuisancedoctrine, this view is no longer widely followed. See, e.g., The Ingrid, 195 F. 596 (S.D.N.Y.1912); In re Oskar Tiedman and Co., 179 F. Supp. 227 (D. Del. 1959); Brownsey v. GeneralPrinting Ink Corp., 193 A. 824 (N.J. 1937); Taylor v. Cincinnati, 55 N.E.2d 724 (Ohio 1924).

Perhaps the best statement of the current legal thought on this issue was made by the ThirdCircuit Court of Appeals in Moran v. Pittsburgh-Des Moines Steel Co.:

There is a well recognized doctrine in the law which found a full exposition in thefamous English case of Rylands v. Fletcher which imposes liability on a land occupierwho collects on his premises things which are apt to do harm if they escape. The lawimposes insurer's liability, or almost insurer's liability, upon the occupier in such casefor the harm done to his neighbors for the escape of the dangerous substance. The ruleand its limitations are well recognized and generally classified today under the headingof ultra-hazardous activities, or some such descriptive phrase....

Sometimes courts, clear as to the result to be reached, but not always happy in thewords used to describe it, have talked the law of nuisance in this connection .... Butthe basis for liability is not really nuisance, a wrong in itself for which equitable reliefagainst continuance would be appropriate. The basis of liability, instead, is theconclusion that when a man does something extraordinarily dangerous which createsan unusual risk to his neighbors he should bear the consequences when that risk ripensinto harm.... [This is] the now orthodox explanation of the basis of liability ....



While most, if not all, American jurisdictions have endorsed someform of Rylands absolute liability, many of the jurisdictions employdistinct liability analyses. For example, some jurisdictions rely solelyon Rylands, and subsequent case law interpreting Rylands, as theirbasis for finding absolute liability.75 Other jurisdictions rely upon theRestatement of Torts (First)7 6 as their basis for absolute liability.77

The majority of jurisdictions that recognize Rylands absoluteliability, however, rely on the Restatement of Torts (Second),7 oftenidentified as the embodiment of Fletcher v. Rylands.7 9 The

166 F.2d 908, 912-13 (3rd Cir. 1948) (footnote omitted); see also Kall v. Carruthers, 211 P. 43,

44 (Cal. 1922). In Kall, the California Supreme Court stated:

In Fletcher v. Rylands it was declared that no amount of diligence is a legal excuse if[impounded] water escapes and damages another. The effect of this doctrine iseverywhere conceded to make every person who brings a foreign substance upon hisproperty an insurer against all damage that may result by reason of its presence on hisproperty.

We find the tendency among the courts in a great majority of the cases to give effectto the rule by finding negligence in some form and putting the decision on that ground.Others give effect by characterizing the result as a nuisance, but declaring some of theacts appearing in such cases to be negligence. Still others give effect on the ground of"absolute liability," or hold the party impounding the water as an "insurer." Thetendency of the courts is to avoid resting the decision upon the two latter grounds.

Id. (citation omitted).75. See, e.g., National Steel Serv. Ctr. v. Gibbons, 319 N.W.2d 269, 273 (Iowa 1982)

("[W]e are committed to a broader application of the strict liability doctrine of Rylands v.Fletcher than is reflected in the Restatement.").

76, RESTATEMENT (FIRST) OF TORTS (1938).77. See, e.g., Matomco Oil Co. v. Arctic Mechanical, Inc., 796 P.2d 1336, 1341 n.12

(Alaska 1990) ("This court has stated its preference for the 'ultrahazardous activity' test of theFirst Restatement over the 'abnormally dangerous' test of the Second." (citing State Farm Fire& Cas. Co. v. Municipality of Anchorage, 788 P.2d 726,729 (Alaska 1990))).

78. RESTATEMENT (SECOND) OF TORTS (1977).79. See Cropper v. Rego Distribution Ctr., Inc., 542 F. Supp. 1142, 1149 (D. Del. 1982)

("Although Rylands' doctrine of strict liability for ultrahazardous activities was slow to gainacceptance in this country, it is now accepted in most jurisdictions."). Interestingly, the Croppercourt used the "ultra hazardous" wording of the Restatement (First) to describe the applicationof the Restatement (Second)'s "abnormally dangerous" embodiment of Rylands absoluteliability. See id.

Section 519 of the Restatement (Second) provides:

(1) One who carries on an abnormally dangerous activity is subject to liability forharm to the person, land or chattels of another resulting from the activity, although hehas exercised the utmost care to prevent the harm.



Restatement (Second) calls for a fact-specific evaluation to determinewhether absolute liability will lie in a particular case. 80 Thus, in mostjurisdictions today, courts apply the Rylands doctrine on a case-by-case basis. This accords with Blackburn's original "naturally there"language, 81 and Lord Cairnes's "non-natural" land use qualification. 82

B. The Categorical Rule

The Rylands doctrine periodically has been treated by courts as acategorical rule that applies to any impoundment of water.83 Manystates that have followed this categorical rule, however, have createdexceptions and explanations to the categorical rule, perhaps becausethe imposition of liability without proof of fault is such a harshremedy.8 4 The process by which states have developed variations on

(2) This strict liability is limited to the kind of harm, the possibility of which makes theactivity abnormally dangerous.

RESTATEMENT (SECOND) OF TORTS § 519. Section 520 of the Restatement (Second) provides:

In determining whether an activity is abnormally dangerous, the following factors areto be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels ofothers;

(b) likelihood that the harm that results from it will be great;(c) inability to eliminate the risk by the exercise of reasonable care;(d) extent to which the activity is not a matter of common usage;(e) inappropriateness of the activity to the place where it is carried on; and(f) extent to which its value to the community is outweighed by its dangerous

attributes.

Id. § 520.80. See RESTATEMENT (SECOND) OF TORTS § 520.81. See supra note 38 and accompanying text.82. See supra note 54 and accompanying text.83. See KEETON ETAL., supra note 62, § 78, at 548.84. See, e.g., City Water Power Co. v. Fergus Falls, 128 N.W. 817, 818 (Minn. 1910)

(imposing absolute liability for the failure of a reservoir, but refusing to extend the rule tolakeside or riverside property owners who place milldams across natural water courses for thepurpose of utilizing water power).

A recurring theme in reported cases is courts' acceptance of the principle of absoluteliability for activities of heightened danger but emphatic rejection of "the Rylands rule," whichthese courts define as merely pertaining to the categorical imposition of liability in situationsthat involve the failure of a water impoundment facility. Thus, these courts at the same timeparadoxically reject and accept Rylands. See, e.g., Snow v. City of Columbia, 409 S.E.2d 797(S.C. Ct. App. 1991), cited in Shockley v. Hoechst Celanese Corp., 793 F. Supp. 670, 673(D.S.C. 1992).



the categorical Rylands rule closely parallels courts' treatment of theRylands doctrine in England.85

One interesting variation on the categorical Rylands rule hasdeveloped in the more ard western states. While purporting toembrace Rylands's principal of categorical liability for theimpoundment of water, these states have nonetheless been unwillingto impose absolute liability in cases involving irrigation ditches. 86

This exception is not surprising, given the importance of agriculturalirrigation in these states 7 and provides a perfect example of howstates liberally interpret the doctrine to meet the specialized needs oftheir citizenry.

C. Statutory Application of the Rylands Rule

Many jurisdictions have codified some form of Rylands absoluteliability. Louisiana, with its unique approach to the law among thestates, may very well have the most far-reaching codified liabilityscheme. Article 667 of the Louisiana Civil Code 8 establishes

85. See North Little Rock Transp. Co. v. Finkbeiner, 420 S.W.2d 874, 879-81 (Ark.1967); see also A.W.B. Simpson, Legal Liability for Bursting Reservoirs: The HistoricalContext ofRylands v. Fletcher, 13 J. LEGAL STUD. 209, 251-64 (1984).

86. See, e.g., Burt v. Farmers' Coop. Irrigation Co., 168 P. 1078, 1082 (Idaho 1917). TheBurt court opined that:

Under the common law one who diverted water from its natural course did so at hisperil, and was held practically to be an insurer against damage which might result fromsuch action. The common law has been modified and relaxed in this and other aridstates, so that the owner of an irrigation ditch is only liable for damages occurring toothers as a result of his negligence or unskillfulness in constructing, maintaining, oroperating the ditch.

Id. (citations omitted) (citing Campbell v. Bear River Mining Co., 35 Cal. 679 (Cal. 1868);Messenger v. Gordon, 62 P. 959 (Colo. 1959); City of Boulder v. Fowler, 18 P. 337 (Colo.1888); Stuart V. Noble Ditch Co., 76 P. 255 (Idaho 1904); McCarty v. Boise City Canal Co., 10P. 623 (Idaho 1886); Fleming v. Lockwood, 92 P. 962 (Mont. 1907); Howell v. Bighorn Co., 81P. 785 (Wyo. 1905)); see also Kunz v. Utah Power & Light Co., 871 F.2d 85 (9th Cir. 1989);Zampos v. United States Smelting, Refining and Mining Co., 206 F.2d 171 (10th Cir. 1953)(citing Mackay v. Breeze, 269 P. 1026 (Utah 1928)); Stephenson v. Pioneer Irrigation Dist., 288P. 421 (Idaho 1930); Arave v. Idaho Canal Co., 46 P. 1024 (Idaho 1896).

87. While these cases were decided before the Restatement (First) and Restatement(Second) were published, it is likely that a similar result would have been reached under eitherRestatement. See RESTATEMENT (SECOND) OF TORTS § 520(f) (1977) (discussing the balancebetween the utility of the impounded water and its dangers).

88. LA. Civ. CODE ANN. art. 667 (West 1980).



Louisiana's Statutory basis for Rylands liability.89 It provides,"Although a proprietor may do with his estate whatever he pleases,still he can not make any work on it, which may deprive his neighborof the liberty of enjoying his own, or which may be the cause of anydamage to him." 90 While the Louisiana statute does not expresslyestablish absolute liability, Louisiana courts have interpreted it thatway.

91

Perhaps the best known example of statutory absolute liability forproperty damage is the clean-up provisions in the ComprehensiveEnvironmental Response, Compensation and Liability Act.92 Otherexamples include Utah's Hazardous Substances Mitigation Act,93

which establishes absolute liability for investigation and abatementcosts resulting from the release of hazardous materials, 94 and theWyoming Environmental Quality Act of 1973,95 which establishesabsolute liability for the discharge of pollution into state waters.96

Additionally, several states have enacted legislation based on theRylands categorical rule relating solely to the impoundment ofwater.

9 7

89. See id. Other sections of the Louisiana Civil Code establish strict liability in otherareas of the law. See A.N. Yiannopoulos, Civil Responsibility in the Framework of Vicinage:Articles 667-69 and 2315 of the Civil Code, 48 TUL. L. REV. 195, 223 (1974).

90. Article 667.91. See Butler v. Baber, 529 So.2d 374 (La. 1988), cited in Perkins v. F.I.E Corp., 762

F.2d 1250, 1254, 1257 (5th Cir. 1985); Street v. Equitable Petroleum Corp., 532 So.2d 887 (La.Ct. App. 1988); John C. Anjier, Note, Butler v. Baber Absolute Liabiltyfor EnvironmentalHazards, 49 LA. L. REV. 1138 (1989).

92. 42 U.S.C. §§ 9601-9675 (1994).93. UTAH CODE ANN. §§ 19-6-301 to -325 (1995).94. See id. § 19-6-302.5, cited in Utah Dep't of Envtl. Quality v. Wind River Petroleum,

881 P.2d 869, 871 (Utah 1994).95. WYO. STAT. ANN. §§ 35-11-101 to -1507 (Michie 1997).96. See People v. Platte Pipe Line Co., 649 P.2d 208 (Wyo. 1984), cited in James E.

Ellerbe, Note, Strict Liability for Oil Spills in Wyoming, 18 LAND & WATER L. REV. 805(1983).

97. For example, a Wyoming statute enacted in 1957 provided: "The owners of reservoirsshall be liable for all damage arising from leakage or overflow of the waters therefrom, or byfloods caused by breaking of the embankments of such reservoir." Wyo. STAT. § 41-46 (1957)(repealed by 1977 Wyo. Sess. Laws ch. 120, § 3). But see Wheatland Irrigation Dist. v.McGuire, 537 P.2d 1128, 1142-43 (Wyo. 1975). In Wheatland, the Wyoming Supreme Courtdetermined through a somewhat circuitous route that:

In light of the entire history of the common-law rule in Wyoming as interpreted by theopinions of this court, as well as the philosophy surrounding those opinions as they



IV. RYLANDS EXPLORED: OREGON'S APPLICATION OF THE DOCTRINE

Oregon's application of the Rylands doctrine is in many respectstypical of the way in which other states have applied the rule.Consequently, Oregon law accurately represents the current status ofthe Rylands doctrine nationwide. For those states that have notadopted the Rylands doctrine, or whose approach to the doctrinesubstantially differs from Oregon's approach, examining Oregon'sapplication of the rule can provide a structured and reasonableapproach to addressing Rylands-style claims.

must be applied to the interpretation of Section 41-46, W.S. 1957, it must beconcluded as we do, that the statute was not intended to be and is not one whichimposes absolute liability.

Id. The Wyoming legislature has enacted a statute that would appear to overrule Wheatland:

Nothing in this act shall be construed to relieve an owner or owners of any reservoir,dam or diversion system of any legal duties, obligations or liabilities incident to theirownership or operation of or any damages resulting from the leakage or overflow ofwater or for floods resulting from the failure or rupture of the fill or structure for suchworks.

Wyo. STAT. ANN. § 41-3-317 (Michie 1997). However, while this provision would appear toestablish (or re-establish) the Rylands categorical rule for reservoirs in Wyoming, the WyomingSupreme Court has rejected this interpretation and, thus, still applies a negligence standard. SeeTillery v. West Side Canal, Inc., 719 P.2d 1384, 1386 (Wyo. 1986).

Likewise, a 1949 Kansas statute supplanted the Rylands categorical rule with a test fornegligence:

The proprietors of every canal, fountain, ditch, conduit or other works for conveying,collecting, retaining or storing waters shall construct and always maintain in goodorder and repair the dams, locks and gates, embankments, and all other appurtenancesthereof, so that the water conveyed, collected, retained or stored thereby may not floodor damage the premises of others, or any highway, or unnecessarily run to waste, andshall be liable for all damages resulting from their willful or negligent failure tocomply with any of the provisions of this act, or from their negligence in theconstruction, maintenance or operation of any such works.

KAN. GEN. STAT., § 42-321 (1994), quoted in Garden City Co. v. Bentrup, 228 F.2d 334, 336(10th Cir. 1955). By way of contrast, Colorado's relevant statute, COLO. REV. STAT. ANN.§ 37-87-104 (West 1990), appears to apply Rylands style liability to reservoirs, albeit in a formriddled with exceptions. See Barr v. Game, Fish and Parks Comm'n, 497 P.2d 340 (Colo. Ct.App. 1972); see also Garnet Ditch & Reservoir Co. v. Sampson, 110 P.2d 79 (Colo. 1910),cited in Wade R. Habeeb, Annotation, Applicability of Rule of Strict or Absolute Liability toOverflow or Escape of Water Caused by Dam Failure, 51 A.L.R.3d 965, 972 (1973); LatimerCounty Ditch Co. v. Zimmerman, 34 P. 111 (Colo. 1893). See generally Wade R. Habeeb,supra, at 972.



A. Establishment of the Rylands Doctrine in Oregon

1. The Esson Decision

Oregon's first application of the Rylands doctrine can be found indicta in the 1893 Oregon Supreme Court decision, Esson v. Wattier.98

In Esson, an individual who owned property adjoining the site of aproposed dam filed suit to enjoin construction of the dam primarilybecause water from the dam was likely to enter and damage hisneighboring property.99 Relying on Justice Blackburn's Rylandsopinion, the Esson court denied the plaintiff's request for injunctiverelief, holding that "[i]f a person brings or accumulates on his landanything which, if it should escape, may cause damage to hisneighbor, he does so at his peril."100 The Esson court, however, failedto acknowledge Blackburn's "naturally there" requirement and theHouse of Lord's "natural use" limitation on Blackburn's broadrule.'' Thus, the Esson court substantially broadened the originalscope of Rylands liability.

After affirming the general application of Rylands in Oregon, theEsson court specifically addressed the application of the Rylands ruleto cases in which an injunction has been sought. The court announcedthe following rule:

If a person, by artificial means, raises a volume of water above

98. 34 P. 756 (Or. 1893). The Esson court's application of the Rylands doctrine alignedOregon with a handful of jurisdictions that, after the 1889 Johnstown Flood, began establishingabsolute liability for damages caused by the escape of impounded waters. See Habeeb, supranote 97, at 965; Glen, supra note 54, at 517.

There is a significant historical parallel between Esson and Rylands. The Oregon SupremeCourt decided Esson while the Johnstown flood was still fresh in the American public'smemory. Similarly, England suffered disastrous dam failures at the Bilberry and BradfieldReservoirs, two disasters that occasioned great loss of life and property, shortly before theEnglish courts decided Rylands. See A.W.B. Simpson, Legal Liability for Bursting Reservoirs:The Historical Context of Rylands v. Fletcher, 13 J. LEGAL STUD. 19, 225 (1984). Thus, thebackdrop for both Esson and Rylands was a fresh memory of disaster occasioned by thecatastrophic failure of large reservoirs.

99. SeeEsson,34P. at756.100. Esson, 34 P. at 757 (quoting Fletcher v. Rylands). The Esson court attributed this

quotation to Justice Blackburn. In fact, however, the quotation is properly attributable to LordCranworth of the House of Lords, who was paraphrasing Justice Blackburn's ExchequerChamber opinion. See 3 L.R.-E. & I. App. 330, 340 (H.L. 1868).

101. SeeEsson, 34 P. at 757.



its natural level, and, by percolation or by overflow, injuresneighboring lands, without license, prescription, or grant fromthe proprietor, he may invoke the interposition of a court ofequity, and obtain an injunction to prevent it, when he wouldsustain irreparable injury, or be compelled to bring amultiplicity of actions to recover the damages as theyaccrued.

02

Finding that the plaintiff had not sufficiently shown that his propertywould be damaged by the new dam, the court held in favor of thedefendant.'0 3

2. The Mallet Decision

Two decades later, in Mallett v. Taylor,104 the Oregon Supreme

Court affirmed in dicta the broad Esson version of the Rylands rule.Mallett involved the escape of water from an irrigation ditch throughpercolation. 10 5 In afffiring the application of absolute liability incases involving the escape of water from a ditch or dam, the courtfollowed the rule established by Justice Blackburn and followed byboth the House of Lords in Fletcher and the Oregon Supreme Courtin Esson.1' 6 However, the Mallett court found that "[i]n the instantcase there is no need to invoke in all its severity the rule laid down inEsson v. Wattier"07 because the defendant had been negligent, thusallowing the plaintiff to prevail on a negligence claim.10 8 Thus, theOregon Supreme Court recognized that in situations involving theescape of water from either dams or irrigation ditches, liability couldbe established without any inquiry into the naturalness of the activity.In effect, the Mallet court's application of the Rylands doctrineimposed absolute liability in all cases involving the escape ofimpounded water, regardless of the nature of the water source.

102. Id.103. See id. at 758.104. 152 P. 873 (Or. 1915).105. See id.106. See supra notes 53, 100 and accompanying text.107. Mallett, 152 P. at 875.108. See id.



B. The Distinction Between Reservoirs and Ditches

In 1917, the Oregon Supreme Court decided Taylor v. Farmers'Irrigation Co.,1°9 in which a property owner sought injunctive reliefagainst the incursion of water onto his property caused by hisneighbor's allegedly negligent construction of a ditch." 0 Afterfinding that the plaintiff had not been injured by the defendant andthe defendant had not been negligent, the court denied injunctiverelief.' 11 The court stated that "the owner of a ditch is not liable perse for leakage from his ditch, without negligence upon his part."" 12

This was a clear departure from the absolute liability rule that theOregon Supreme Court had applied to dams and reservoirs.1 13

However, it appears that Taylor's inclusion of a negligencerequirement was restricted to the escape of water from a ditch.Oregon courts confirmed this apparent distinction between reservoirsand ditches in later cases.

Oregon's next opportunity to address the Rylands doctrine cametwenty years later in Patterson v. Horsefly Irrigation District."14 LikeTaylor, Patterson concerned water that had leaked from a ditch." 5 InPatterson, the defendant appealed the trial court's use of juryinstructions that closely resembled the Mallet court's wording of theRylands rule." 6 The Patterson court acknowledged the precedentialvalue of the Mallet decision, but applied the Taylor court'snegligence modification' 17 According to the Patterson court:

[T]he strict rule of liability, as laid down in the cases of damsand reservoirs... is not usually applied to ditches and canals,where the water is under no, or comparatively little, pressure.

109. 162 P. 973 (Or. 1917).110. See id.111. Seeid. at 974.112. Id.113. See, e.g., Esson v. Wattier, 34 P. 756 (Or. 1893).114. 69 P.2d 283 (Or. 1937).115. Seeki.116. See ieL at 290. The section of the jury instructions at issue read: "I instruct you where

a person by artificial means causes water to percolate through the soil to the injury of hisneighbor [he] does so at his peril and is legally responsible therefor irrespective of negligence."Id. (brackets in original).

117. Seeid.at291.



The carrying of water through ditches and canals is not adangerous or menacing undertaking, and, by the exercise ofordinary or reasonable care, it can be rendered comparativelyharmless.... In other words, the owners of an irrigation canalor ditch are not liable as insurers, for injuries sustained toadjoining property by seepage, leakage, or overflow from thecanal or ditch, but are only liable for such injuries in case ofactual negligence." 8

The Patterson court distinguished ditches from dams andreservoirs because ditches, unlike reservoirs, do not typicallyoverflow without negligence. In addition, the Patterson court notedthat the escape of water from a ditch "is liable to do little injury, ascompared with that when the escape is from a reservoir."' 19 Thus, thePatterson court justified on solid policy grounds Taylor's distinctionbetween dams and reservoirs on the one hand, and ditches and canalson the other.

The Oregon Supreme Court faced yet another question regardingliability for the escape of water from a ditch in Kaylor v. Recla.120

The Kaylor court, which relied upon its previous decisions in Malletand Patterson, declared that, according to Oregon jurisprudence, "[I]fa person, by artificial means, raises a volume of water above itsnatural level, and, by percolation and by overflow, injuresneighboring lands... when the same can be prevented by reasonableand not too expensive means, the [person] is liable for injury done toadjoining lands .... " Significantly, the Kaylor court's statement ofthe status of Oregon law mischaracterized Oregon jurisprudence byasserting that, generally, Oregon courts impose absolute liabilityaccording to whether a party has acted reasonably122 in his or herattempts to avoid injuring neighboring property. Contrary to theKaylor court's statement of Oregon law, Oregon courts consistentlyhave held that, with respect to dams and reservoirs, the Rylands

118. Id. at 290-91 (quoting 3 KINNEY ON IRRIGATION AND WATER RIGHTS 672 (2d ed.1912).

119. Id.120. 84 P.2d 495 (Or. 1938).121. Id. at 496-97 (emphasis added).122. See id.



doctrine imposes strict liability without regard to whether a party hasacted reasonably. While it is possible that the Kaylor court'sstatement of Oregon jurisprudence represents an attempt to integratethe Oregon Supreme Court's holdings in Patterson and Mallet, itmakes little sense to extend the Patterson requirement of negligenceinto areas that neither Patterson nor Taylor contemplated. Kaylor'sinterpretation of the doctrine of liability for escaping waters has beenlargely ignored in subsequent Oregon and federal court decisions andis probably best viewed as a simple misstatement of the law.'2 1

C. The Exception for Reservoir-Like Bodies of Water

In 1950, Judge James Alger Fee of the United States DistrictCourt for the District of Oregon decided Ure v. United States.124 Urewas a consolidation of two actions, both of which concerned a breachin the North Canal of the Owyhee Reclamation Project. The NorthCanal was a raised canal, 125 approximately seventy miles long, 126 thatcarried 3,366 gallons of water per second. 127 In 1946, the North Canalsuffered a breach approximately fifty feet wide at a point locatedthirty-six miles from the head of the canal. 128 Water drained out ofthe canal through the breach and flowed onto neighboring propertiesthat were located a short distance from, and approximately 260 feetbelow, the level of the raised canal. 129 One of the neighboringproperties was owned by the Ures, who instituted an action to recoverdamages caused by the incursion of water onto their land. 130 TheWhites, who owned agricultural land some distance from the canalbreach, also instituted an action, claiming that the canal breach

123. But see Glen, supra note 54, at 523, 526 (citing Kaylor v. Recla as supporting theproposition that "[a]ccording to the overwhelming weight of authority, liability for damagecaused by the escape of waters impounded in reservoirs or ponds... depends upon proof ofsome act of negligence.").

124. 93 F. Supp. 779 (D. Or. 1950), rev'don other grounds, 225 F.2d 709 (9th Cir. 1955).125. See d. at 785.126. Seeid. at 781.127. See id. at 782. This amount is equal to approximately 450 second-feet, with a weight

of approximately fourteen tons (28,080 pounds). See THE WORLD ALMANAC 559-62 (RobertFamighetti et al. eds., Funk & Wagnalls 1995).

128. See Ure, 93 F. Supp. at 781.129. See Ure, 225 F.2d at 710.130. See Ure, 93 F. Supp. at 782.



caused a lack of irrigation water for their crops.131

With respect to the Whites, the court held that the defendant didnot breach its duty to them and, thus, was not liable for theirdamages. 32 With respect to the Ures, however, the court found thatthe defendant was absolutely liable for the breach in the canal. 133

Judge Fee examined Oregon's application of the Rylands doctrineand noted that while "there [was] probably no opinion in which the[Oregon Supreme Court] squarely applied [Rylands],' 34 the emphaticapproval of Rylands by the Oregon Supreme Court convinced himthat "the Oregon Supreme Court, if faced with the exact facts here,would apply the rule of absolute liability."'135

According to Judge Fee, prior Oregon case law had dealt withminor incursions of water from canals and had never addressed "amajor breach in the bank of a large canal.' 36 In the Ures' situation,the "column of water was flowing for a distance of 36.15 miles downand through the break,"' 137 and the canal represented a "highlydangerous instrumentality" 38 capable of releasing a "devastating rushof water."'139 This fact distinguished Ure from other Oregon casesdealing with water escaping from ditches and canals.

Judge Fee's decision seems to have been based on the propositionthat a breach in a major canal carrying a large amount of water posesthe same type and degree of danger inherent in a breach of a dam orreservoir. This observation is supported by Judge Fee's examinationof case law from outside of Oregon. After analyzing several suchcases involving the percolation of waters from an irrigation ditch 140

and slight overflows from a canal,' 4' Judge Fee wrote:

131. Seeid.at781.132. Seeid. at785.133. See id. at 792.134. Id. at789.135. Id. at 791. Some commentators have incorrectly construed this as a blanket statement

that effectively reinstated the Rylands rule of strict liability for the escape of water from bothreservoirs and ditches, as applied in Esson and Mallet. See CLARK, supra note 10, at 69; Brand,supra note 54, at 35 1.

136. Ure, 93 F. Supp. at 790.137. Id. at 782.138. Id. at791.139. Id. at 786.140. See id. (citing North Sterling Irrigation Dist. v. Dickman, 149 P. 97 (Colo. 1915)).141. See id. (citing Jacoby v. Town of Gillette, 174 P.2d 505 (Wyo. 1946), afJd, 177 P.2d



All these must be distinguished from the violent breach of areservoir by this elemental force stored by the act of a party.Where one is managing a stream of water and loses control,whereby the element rages over the land of another, the casesabove mentioned have no applicability. 142

Judge Fee's opinion, which has been characterized as "classical, ' 143

would be of great help to the Oregon Supreme Court when, thefollowing year, it would attempt to clarify the application of Rylandsabsolute liability in Oregon.

D. Oregon 's Current Law: The Brown Decision

In 1951, the Oregon Supreme Court, armed with Judge Fee'sclarification of Oregon law, addressed the issue of absolute liabilityfor escaping water in Brown v. Gessler.144 In 1947, the Gesslersbegan construction of a building on their property. 45 Following theexcavation, and before the building's foundation could be laid, rainwater filled the excavation site. 46 The water flowed into the Browns'neighboring basement through a drainage tile, damaging materialsstored in the basement. 147 The Browns filed suit, alleging that theGesslers were liable under the absolute liability rule of Rylands.148

Although the Oregon Supreme Court acknowledged that theRylands doctrine had been adopted in Oregon, the court found thatthe rule was not applicable to the facts of Brown.'49 The courtdistinguished the facts of Brown from the Oregon cases that hadapplied the rule: "[T]he excavation here was not for the purpose ofconstructing a reservoir to hold water. It was made in the ordinarycourse of building construction and was temporary in character."' 50

204 (Wyo. 1947)).142. Ure, 93 F. Supp. at 787.143. See Union Pac. R.L. Co. v. Oregon Irrigation Dist., 253 F. Supp. 251, 258 (D. Or.

1966).144. 230 P.2d 541 (Or. 1951).145. See id. at 543.146. See id. at 544.147. See id.148. See id. at 545.149. See id. Instead, the court found the defendants liable on the basis of negligence.150. Id.



Thus, Brown reaffirmed and clarified Patterson's application ofRylands absolute liability to reservoirs and not to ditches.1 51 It alsoprovided a clearer conceptual basis for Oregon's different treatmentof reservoirs and ditches. Reservoirs, unlike ditches, are not ordinaryor, in Lord Cairnes's words, "natural" uses of water; rather, they areuses that come with an extraordinary risk of harm. Thus, a higherlevel of liability should be associated with reservoirs.

When Brown is placed in the context of the other Oregondecisions, it is clear that there are two theories under which a waterimpoundment facility may be subject to the Rylands doctrine. First, ifa water impoundment facility was constructed for the purpose ofacting as a reservoir, it would be categorically subject to Rylandsabsolute liability. 52 Second, even if a reservoir-like impoundmentfacility was not constructed to act as a reservoir, it may still besubject to Rylands liability if a court determines that its use isunreasonable.

153

1. Categorical Liability

The Brown court first dealt with the question of whether thedefendants' excavation was for the purpose of constructing areservoir. According to the court, "[tihe waters collected in the[excavation] were not brought [into the excavation] to serve anypurpose of the defendants and were perhaps as unwelcome to thedefendants as to plaintiffs."' 54 The Brown court held that thedefendants did not intend to build a reservoir but instead were takingwhat was "necessarily the first step in the construction of [a]

151. See supra note 119 and accompanying text.152. Several commentators have expressed the mistaken belief that Brown requires that a

defendant have brought water onto his property "for his own purposes." See CLARK, supra note10, at 70. This belief may stem from the Brown court's decision to quote Justice Blackburn'sRylands opinion: .'We think the true rule of law is, that the person who for his own purposesbrings on his lands and collects and keeps there anything likely to do mischief.., must keep itin at his peril .... Brown, 230 P.2d at 545 (quoting Fletcher, 1 L.R.-Ex. 265 (Ex. Ch. 1866)).In fact, however, Oregon courts have not used Blackburn's generalized "for his own purposes"test in reported cases, either before or after Brown.

153. See Brown, 230 P.2d at 540.154. Id. at 545.



building." s According to the court, the Gesslers should haveanticipated that the excavation site might fill with water, and theirfailure to take the necessary precautions established the basis of theirliability in negligence rather than absolute liability.156

2. Unreasonable Use of a Reservoir-Like Impoundment Facility

Having determined that the excavation site was not a reservoir, theBrown court turned to the question of whether such a site couldnonetheless invoke Rylands absolute liability because of its reservoir-like characteristics. In response to the plaintiffs' contention that theapplication of Rylands does not depend on whether a defendantexcavates his property for the purpose of building a reservoir, 57 thecourt admitted that "[u]nder some circumstances that might be true,but not under the circumstances of this case."1 58 According to thecourt, the circumstances under which the purpose of the excavationwould be unimportant could be determined by asking if the "act oruse [was] a reasonable exercise of the dominion which the owner ofthe property has by virtue of his ownership over his property, havingregard to all interests affected, his own and those of his neighbors,and having in view also, public policy."'159 The end result of thisanalysis would yield the appropriate "degree of care . .. requiredcommensurate with the danger involved."'160

Toward this end, the Brown court distinguished its holding fromthe Colorado case of Canon City v. Oxtob .16 1 In Canon City, arailroad company excavated a borrow pit 16 to obtain material tomaintain its einbankments and roadbed.' 63 The pit soon filled withwater, creating a pond between four and seven feet deep with a

155. Id.156. See id.157. See id.158. Id. at 546.159. Id. at 547 (citing 1 AM. JUR. Adjoining Landowners § 3 (1936)).160. Id161. 100 P. 1127, 1128 (Colo. 1908), cited in Brown, 230 P.2d at 546.162. A "borrow pit" is a pit from which earth is taken for use in filling or embanking. See

WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 257 (3d ed.1993).

163. See Canon City, 100 P. at 1127.



surface area that was slightly larger than an acre. 164 The water sat inthe borrow pit for a prolonged period of time, after which it began todamage a neighboring property through percolation. 165 The ColoradoSupreme Court held the railroad liable for the damage caused by theescaping water. 16

The Brown court explained that, unlike the Gesslers' excavation,"a 'borrow pit' is a more or less permanent excavation and, in effect,a reservoir, though not such for any use or purpose of the owner."' 67

The Brown court further explained that while the Gesslers'excavation was a "reasonable" use of the property,'168 "retaining ...water in the 'borrow pit' involved an extraordinary and unusualdanger to the adjoining landowner."'169 Thus, the Brown courtrecognized Ure's extension of absolute liability to activities thatproduce the same effects as reservoirs, but limited that extension tothose circumstances that present extraordinary and unusual danger.

E. Subsequent Cases and the Expansion of the Rylands DoctrineBeyond Water-Related Liability

Since the Oregon Supreme Court decided Brown, the list ofreservoir-like activities to which the Rylands doctrine applies hasbranched out into activities that are not associated with water. Oregoncourts have increasingly applied the Rylands doctrine to other "ultrahazardous"'' 7 0 or "abnormally dangerous '' 17' activities, such as the

164. See id. At various times during the year, the pond held up to 2,618,350 gallons ofwater, with a weight of 10,930 tons. See id.

165. See Canon City, 100P. at 1128.166. See id. Though a Colorado case, Canon City is nevertheless applicable to a discussion

of Oregon law because the Canon City court asserted that it decided the case in accord with thecommon law of England, see id., and Oregon courts' application of absolute liabilityconsistently has followed the common law of England.

167. Brown, 230 P.2d at 546 (emphasis added).168. See id. at 545.169. Id. at 546. In contrasting the borrow pit and the Gesslers' excavation, the Brown court

focused on the fact that the construction of a building on the Gesslers' property, including thenecessary act of digging a temporary excavation for the foundation, was a "reasonable exerciseof the dominion which [the] defendants had over their own property," id. at 547, while theborrow pit involved extraordinary and unusual danger. See id. '

170. "Ultra hazardous" is the terminology used in the Restatement (First) of Torts. SeeRESTATEMENT OF TORTS § 520,41 (1938).

171. "Abnormally dangerous" is the terminology used in the Restatement (Second) of



storage of natural gas, 172 blasting,173 and crop dusting.174 Currently,the most widely accepted wording of the rule of absolute liability inOregon can be found in McLane v. Northwest Natural GasCompany. 75 According to McLane, an activity is abnormallydangerous and, thus, subject to Rylands absolute liability when it is"extraordinary, exceptional, or unusual, considering the locality inwhich it is carried on; when there is a risk of grave harm from suchabnormality; and when the risk cannot be eliminated by the exerciseof reasonable care.' 76 While the exact application of this formulaoften differs between Oregon courts, 177 the law, in general, is fairlywell settled.

7 1

The Oregon Supreme Court recently has shown a willingness toapply the McLane formulation of "abnormally dangerous activities"to irrigation ditches, despite earlier decisions, such as Patterson, thatwould seem to preclude such an application. In Reter v. TalentIrrigation District,7 9 the Oregon Supreme Court examined thepossibility of applying Rylands absolute liability to a claim fordamage to an orchard caused by seepage from a small irrigation ditch

Torts. See RESTATEMENT (SECOND) OF TORTS § 520,36 (1977).172. See, e.g., McLane v. Northwest Natural Gas Co., 467 P.2d 635 (Or. 1970).173. See, e.g., Bedell v. Goulter, 261 P.2d 842 (Or. 1953).174. See, e.g., Loe v. Lenhardt, 362 P.2d 312 (Or. 1961).175. 476 P.2d 633 (Or. 1970).176. Id. at 637. The formulation is essentially that of the Restatement (Second) of Torts

without part (f):

In determining whether an activity is abnormally dangerous, the following factors areto be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels ofothers;

(b) likelihood that the harm that results from it will be great;(c) inability to eliminate the risk by the exercise of reasonable care;(d) extent to which the activity is not a matter of common usage;(e) inappropriateness of the activity to the place where it is carried on; and(f) extent to which its value to the community is outweighed by its dangerous

attributes.

RESTATEMENT (SECOND) OF TORTS § 520.177. See, e.g., Koos v. Roth, 652 P.2d 1255, 1258-61 (Or. 1982).178. See, e.g., James 0. Garrett, H OREGON STATE BAR REAL PROPERTY CLE § 52.30, at

52-2 1.179. 482 P.2d 170 (Or. 1971).



carrying a "non-reservoir-like" flow of water.180 The court, after firstquoting with approval McLane's definition of "abnormallydangerous," stated that:

The activity conducted by defendant here-the irrigation oforchard land in a naturally dry area--can hardly be called"exceptional, or unusual, considering the locality in which it iscaried on." Moreover, the risk of serious harm created by theactivity is minimal. The canals involved in this case areapproximately 18 inches deep and four feet wide. They do notappear to create the risk of serious harm which courts have hadin mind in imposing strict liability.18 1

Thus, while the Reter court found that imposing absolute liability wasinappropriate under the facts of Reter, the court's willingness even toapply the McLane formula to irrigation ditches represents asignificant departure from Oregon's Rylands jurisprudence.

V. CONCLUSION

The Oregon case law dealing with Rylands absolute liability hasfollowed a consistent path. Esson and Mallett initially recognized theneed for a non-traditional basis of liability for the escape of restrainedwaters. In doing so, Oregon became one of the first states torecognize that certain activities are so dangerous that a partyconducting those activities should act as an insurer for neighbors.Subsequent Oregon case law clarified the doctrine of absoluteliability on practical and public policy grounds. Eventually, Oregoncourts developed a two-prong test for the application of Rylands:structures constructed for the purpose of acting as a reservoir arecategorically subject to absolute liability, whereas structures thatwere not built to serve as reservoirs are subject to a case-by-caseanalysis to determine whether absolute liability should be imposed.While this case-by-case analysis of non-reservoir structures firsthinged on the distinction between "reasonable" uses of property andthose uses that carry with them the same sort of danger that is

180. See id. at 173.181. Id.



associated with reservoirs, subsequent case law has expanded thisdistinction to one between reasonable uses of property and"abnormally dangerous" uses of property.

Oregon's application of the Rylands doctrine exemplifies thedoctrine's status throughout much of the United States. While moststates have adopted the Rylands doctrine either in whole or in part,not all states have had the opportunity to develop and test the doctrineto the same degree as has Oregon. Thus, Oregon's refined applicationof the doctrine may serve well as a prototype for those states whoseown version of the doctrine is not so well defined.


NOTES



Documents

Oregon's Development of Absolute Liability Under the